This column by ACRU Senior Fellow Ken Blackwell and ACRU Senior Legal Analyst Ken Klukowski was published April 10, 2012 on Breitbart.com.
Sadly, some are exploiting the Trayvon Martin shooting to target self-defense laws that protect innocent lives. These statutes safeguard law-abiding and peaceable citizens, and are not to blame in the tragic Florida incident. Stand Your Ground laws did not apply in that situation, and statements to the contrary are irresponsible and misinformed.
In some states, the law imposes a duty to retreat from physical confrontations. Whether in your home or on the street, if you stand and fight, you might be prosecuted as a criminal.
This duty makes for terrible law. It requires you to turn your back on an assailant. Even if he does not have a gun to shoot you in the back, if he can run faster than you, he can attack you from behind, putting you at a serious disadvantage.
Some states have chosen not to impose this misguided rule. They took a common-sense approach to self-defense, which the U.S. Supreme Court in Beard v. U.S. endorsed as early as 1895, when the Court unanimously declared that an innocent person under attack was “not obliged to retreat, but was entitled to stand his ground, and meet any attack upon him with a deadly weapon, in such a way and with such force as … [he] honestly believed, and had reasonable grounds to believe, was necessary to save his own life, or to protect himself from great bodily injury.”
In recent years legislatures have enacted new statutes to address this situation. Many are states where the legal rule was good but legislators wanted to reinforce it. Others were states where the judges had rejected the common-sense principle embraced by the Supreme Court.
One legislative response to the wrongheaded duty to retreat was the so-called Castle Doctrine. The duty to retreat in some states required you to abandon your own home if confronted with an invader, leaving all your possessions to the invader and possibly endangering others.
The Castle Doctrine comes from the maxim that “a man’s home is his castle.” The idea is that if someone breaks into your home, rather than worry about how much evidence there is that he intends you harm and whether you could prove it in a court of law, the law presumes you have a reasonable fear of death or bodily harm and can respond accordingly.
The Castle Doctrine doesn’t apply if you’re in a public place, however. Instead, some states have created a lesser form of protection in public places, called “Stand Your Ground” (SYG). This is the law that has been mentioned in connection with the Trayvon Martin/George Zimmerman shooting.
But the law is not what you have heard reported by the media. Florida’s SYG law provides that a person under attack can use force–including deadly force–against his attacker if he “reasonably believes that such force is necessary to prevent imminent death or great bodily harm…or to prevent the imminent commission of a forcible felony.”
Several keys points. First, the threat must be deadly. It’s not just that someone punched you in the face. You must be threatened with force sufficient to kill you or cause massive bodily harm, or a similar forcible felony (such as rape).
Second, it’s not enough that the victim believes he is under a deadly threat. His belief must also be reasonable, meaning that under the circumstances an objective observer would likewise conclude the victim could be killed or severely injured.
Third, SYG only protects victims; it does not apply to attackers. If you’re attacking someone, you cannot claim SYG as a defense for what follows.
And fourth, it doesn’t apply if you cannot retreat. If retreat is not an option, then the situation is governed by ordinary self-defense laws, not SYG laws.
Under any version of the facts, Florida’s “Stand Your Ground” law did not apply in the Trayvon Martin incident. If Zimmerman pursued a confrontation with Martin, then Zimmerman was an attacker and cannot claim SYG. If Zimmerman’s account is true that he was on the ground and Martin was on top of him, then retreat was impossible, so there would be no duty to retreat anyway. A victim in such a situation can use deadly force, but only if he reasonably believes he is being attacked with deadly force.
To our knowledge, that is the law in all fifty states. It was the law before SYG statutes were ever passed, and SYG did nothing to change it.
So why is this not common knowledge after all the reporting on the Martin shooting? Tragically, some anti-gun activists are misinforming the public. They are aided by media commentators who were either sympathetic to the leftists or failed the public trust by not researching and understanding the SYG issue before presuming to editorialize on it.
The police are usually not at hand when you are attacked by a criminal. The Second Amendment guarantees the right of law-abiding citizens to defend themselves. And laws like Castle Doctrine and Stand Your Ground reinforce that right, especially in states where it had been eroded, not to take innocent life, but instead to preserve it.